The weblog of Irfan Yusuf, bush lawyer, humorist and award-winning author, once a small-c conservative but now politically left right out. His often irreverent take on things appears in some newspapers in Australia and New Zealand and online. His comic memoir "Once Were Radicals: My Years As A Teenage Islamo-fascist" was published in May 2009 and won the Iremonger Award for Public Issues Writing.

Sunday, March 02, 2008

COMMENT: What Dr Ramadan taught me about sharia ...

(The followeing are excerpts from an article published on AltMuslim.com on 1 April 2005.)

Recently Dr. Ramadan has made the headlines with his claim that there should be a moratorium on corporal punishment, stoning and the death penalty (collectively known as hudud) in the Islamic world. His comments have been condemned by Muslim writers and scholars, including those claiming to follow the legacy of Dr. Ramadan's grandfather.

I am not qualified to speak on the legal validity of Dr. Ramadan's proposal. I do not hold any formal qualifications in sharia law, nor am I a graduate of an Islamic university. I have rarely set foot in any madressa (except to learn how to read the Qur'an in Arabic).

But I do know something about the administration of criminal justice. I also know a little about politics and public relations. And I would humbly submit that unless our scholars handle themselves properly, we might be headed for another public relations disaster.

Sharia is not just about criminal justice, stoning adulterers or chopping hands and heads off. Sharia is a complex and sophisticated legal tradition encompassing a broad range of opinions from things as fundamental as how rules are derived to things more mundane as where to place your hands when praying ... Hudud punishments are a small portion of the corpus of sharia.

But the way some of our scholars are reacting, one would think that perhaps all those News Limited columnists are right and that sharia is little more than nasty punishments.

Criminal justice does not just exist in statute books or scholarly dissertations. Between crime and punishment is a whole series of steps. The person must be apprehended and charged. A decision needs to be made on bail. Then there are issues relating to court evidence and procedure. Finally, upon conviction, there must be sentencing guidelines for the judge to follow. Not every theft leads to an automatic amputation.

All this requires specially trained law enforcement agencies ...

Also required are qualified and independent judges. I have relatives in Pakistan who are lawyers. They tell me how wonderfully independent judges there are - to the highest bidder. The judge initially hearing Anwar's case was also totally independent in doing the bidding of the government.

Before pro-Ikhwan [Muslim Brotherhood, an Arab Islamist movement ironically founded by Dr Ramadan's grandfather] writers attack Dr. Ramadan over his proposal, they should provide one example of a Muslim country where the rule of law is supreme, where judges are qualified to understand and justly enforce hudud and where police and other law enforcement agencies are relatively corruption-free. Sharia may be ... a divinely-inspired legal system. But in the hands of the wrong people, it's criminal punishments can become part of the devil's handiwork.

The late Syed Maududi, a chief proponent of the introduction of sharia into Pakistani law, was also strongly opposed to the introduction of hudud until the moral, social and educational conditions were right. No point chopping hands for theft when the entire economy is based on a reverse Robin Hood system - stealing from the poor majority to give to the rich minority.

And what a nightmare it would be if the proponents of sharia turn out to be the ones behind the creation of a system in which sharia lost all credibility in the eyes of the people it was meant to guide and save. Imagine an international Muslim community fillied with millions of Amina Lawals.

Caliph Umar had the right idea. He suspended the punishment for theft during times of severe poverty arising from a famine. When people are forced to steal just to survive, amputating their limbs hardly seems just.

When Muslim scholars take absurd positions and oppose anything that resembles compromising (a portion of) sharia, they undermine their own credibility. For many, it also involves them speaking and judging in areas beyond their expertise. The trial judge who sentenced Amina Lawal on the basis of a minority (and largely discredited) position within the Maliki school of law was a classic example of this.

These scholars also make it hard for other scholars, writers, professionals, business people and other ordinary Muslims who are busy trying to engage with their fellow humans. It is hard to tell someone that your intentions are peaceful when your religious scholars are intent on imposing criminal sanctions seemingly based on mindless violence. So much being able to fruitfully engage with non-Muslims!

Of course, our scholars could always just state the truth. They could acknowledge that there are serious obstacles to be overcome before any aspect of sharia is implemented on a national level in any Muslim country. They could also acknowledge that sharia is not just concerned with criminal justice but also with economic, political, social, educational, matrimonial and every other form of justice. Sharia is as much about curbing anti-competitive behaviour in the market or ensuring mediation becomes a primary means of settling commercial disputes as it is about punishing criminals.

Law does not exist in a social vacuum. Let's get our Muslim societies in order before we start drastically increasing the severity of our criminal punishments. Let's ensure we have in each Muslim country an independent judiciary, a corruption-free police force, court officials who do not take bribes, politicians who feel the full force of the law and social conditions which mitigate against theft, murder and every other crime the subject of hudud.

Tariq Ramadan has a point ... Let the Muslim country bound by the rule of law cast the first stone.